In a past article, we talked about how the legalization of recreational marijuana in multiple states -including California, has resulted in a need for new tests to determine if someone has been driving under the influence of the drug. As it turns out though, one of the tests that was being examined is now already being used by the San Diego Police Department despite the fact that the test has multiple issues. Here’s what you should know according to top San Diego DUI defense lawyer Peter M. Liss.
The test in question here involves a device called the Drager 5000, which uses a swab from someone’s cheek and can produce results within 8 minutes. The Drager 5000 is promoted as being able to determine if someone is under the influence of not only marijuana, but methamphetamines, certain prescription drugs and a handful of other illegal substances.
Unfortunately, the Drager 5000 has not been determined to be accurate in estimating whether a person is actually under the influence of these drugs, so it cannot legally be used in place of a urine or blood test. This is why the most important thing to remember if police ask you to submit to a cheek swab to determine if you have been driving under the influence is to always say no because this test is 100% voluntary. Like field sobriety tests, this test is only there to provide police with additional evidence against you. There is no benefit to the driver to take this test and it will not hurt you to refuse to take it. If the test comes back positive saying you have been using drugs, you will be taken to the station and asked to take a blood test. Practically every DUI attorney in San Diego will urge you not to take this test if asked to do so.
It is uncertain whether or not the Drager 5000 will ever be accepted as a required test to determine intoxication because the testing process is lengthy and rigorous. In order for the device to pass, it must have a minimum number of false positives, which could be particularly problematic if it can’t distinguish between a person smoking pot (or other inhaled drug) or being around someone smoking. Ideally, a marijuana DUI testing tool would be able to not only test for marijuana used by smoking, but also ingested marijuana as police will not want to test people twice for the same drug and most people (and attorneys) would consider waiting for two tests to be performed to be a form of unreasonable detainment.
In Australia, where the the device was used to test for marijuana DUIs, police memos revealed a third of the Drager 5000 machines did not work and many others delivered suspect results.
Even if the Drager 5000 was 100% accurate though, its use would still be problematic when dealing with our new recreational marijuana laws as the state has not established an acceptable level of intoxication -the way that .08 is the legal BAC limit for alcohol use. Marijuana leaves your body far, far after you stop feeling its effects, which means that saying someone must have absolutely no marijuana in their system while driving is unreasonable in a state with legal marijuana use. A device like the Drager 5000 will be critical in establishing whether someone is over the legal driving limit of marijuana use, but until such a law is written, prosecutors will claim that someone with any marijuana in their system are driving under the influence while San Diego DUI defense attorney will argue that there was not enough evidence to show a particular driver was actually under the influence at the time of driving.
If you have been accused of driving under the influence of marijuana, remember to refuse to do any test but a blood test, to refuse to answer any police questions outside of those relating to your identity and to contact a San Diego drug DUI lawyer as soon as possible. You can call Peter M. Liss at any time by dialing (760) 643-4050 or (858) 486-3024.
Creative Commons Image by Heath Alseike